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12/9/09

ROFLR Rears Its Ugly Head—Again

Updated to be more clear...

My author friend has a book deal with [a particular LDS publisher]. She's published a few books with them. I was shocked when she told me that TPLDSP [this particular LDS publisher] has first and LAST right of refusal. Meaning that she has to publish ANYTHING she writes through TPLDSP , or not at all. And if they don't want it, she can't shop other publishers.

Is this even legal? Can they force her to use them for all of her publishing, indefinitely? If it isn't illegal, it's definitely immoral. She was a novice writer who probably didn't even understand what she was signing. Have you ever heard of anything like this?

Thanks for any insight.

Because I haven't seen her specific contract (and no, I don't want to see it because I do not give legal advice), I can't really say what exactly her contract says.

However, I've seen contracts from TPLDSP, and yes, they can be pretty bad in that area—at least, they were several years ago. Usually, the ROFLR clause means that if they reject the book she CAN shop it around to someone else, but if that someone else wants it, she will have to go back to TPLDSP and let them know she has another offer and then give TPLDSP the chance to reject it again. If they reject it this second time, she's free to sell rights to the new publisher.

But the next book she writes has to go through this same process as well.

Legal? Yes. If they create the contract and she agrees to it, then yes, it's legal.

Moral/Ethical? Not in my opinion. But I do understand why some small publishers try to get away with it. [This is based on the description of the ROFLR clause given above, NOT a simple ROFR for a series or another LDS book.]

Binding? No. They cannot force her to stay with them forever. I know quite a few authors who have started with TPLDSP and have later gotten out of their contract. [If you're one of those authors and would like to tell us how you did it, you may do so in the comments, anonymously if you like.]

If she is unhappy with her contract, have her speak with their editor/legal department. She may be able to resolve her situation with a courteous conversation. Most LDS publishers will let an author out of their contract if they're not happy. If not, as an absolute LAST RESORT, she should speak to a contract attorney, one who specializes in this area, if possible.

27 comments:

Anonymous
said...

Speak to an attorney? I spoke with four. Average cost? $30,000.00 for the first round. Another 30-40 thousand for the certainty of a second round. Promise of success? They all said the ROFR clause was illegal in Utah, but that no LDS author has ever had the guts (or the money) to take 'em to court.

Good luck honey. You better make nice with them. You have no other choice.

I don't understand why TPLDSP (and actually I believe there are two of them, not just one who do it), does something illegal and unethical and despicable just to keep on authors. It surely can't be necessary for their survival.

At my company, we get more mss. than we can accept, from excellent LDS writers. Granted, most are unpublished and need a lot of editing, but the end result is (or will be, we're still new) a diverse lot of good books, not the same ol', same ol' that you get when you're just recycling the same authors over and over.

It seems that by doing away with ROFR would help these companies in so many ways. I just don't get it. Of course, with a series, it's perfectly understandable. We do first right of refusal for the next books in a series. But to do it like this? No good for authors, for the publishers, or for the reading public.

I just received my contract from a major LDS publisher and it had the ROFLR but it wasn't phrased that way so I didn't catch it at first. When I did, like you just suggested, I asked if we could tweak the language to rights of first refusal only and also that it only apply to LDS themed works (in case I ever decide to do something national). I had a new contract within two hours and they were super nice about it.

Cooler heads should prevail here, people. ROFR is not a huge deal, especially in such a small market as the LDS niche. The author friend who is blabbing about her contract is probably breaching her contract (and professional publishing decorum) by spilling all the details to anyone who asks and allowing a "friend" to blab to a blogger about it.

If this author is so concerned about a publisher asking to see her very next manuscript and possibly (gasp) publish it under fair terms, she should go with someone who might not be interested in every manuscript written by the author. If this author is unhappy with the publisher as a whole for any reason, this author should POLITELY and COURTEOUSLY and (get ready) PROFESSIONALLY express her concerns to her editor to see what can be done about them. If a successful resolution is not reached, the author could very easily express to her editor that she would be interested in getting out of her contract. Usually any publisher in this market is willing to either (1) work to resolve an author's concerns or (2) accept that the author isn't right for them and release her from the contract.

What advice SHOULDN'T be given out is to hire a lawyer at the drop of a dime to do everything an author could do all by herself. A lawyer's certainly helpful in reviewing a contract and making sure everything is fair and square, but they essentially escalate the problem. They can be bridge burners in a situation that the author could tactfully resolve for herself.

ALSO...there aren't that many LDS publishers out there in the first place, so ROFR--guaranteeing a review from a publisher--is not limiting your options but rather securing your options. Worst thing that could happen is that the publisher says, "No thanks, I'll pass," in which case you can shop it around to the 2-3 other LDS publishers who can even sell your book in the first place. No LDS publisher I know of has a ROFR clause for manuscripts without LDS elements. This means that an LDS publishing ROFR does NOT interfere with any national trade market ambitions that an author may have. Not one bit.

Anyone who freaks out about a simple ROFR (or the rarely enforced ROLR) clause in this market shows immediate lack of understanding for the logistics of this market.

An author who goes about publishing with any publisher can win friends, influence people, and maybe publish a few books in the process if she or he will just show some professionalism and tact.

Um... Last anonymous? Simmer down. I submitted this question. I am not a published author. I really WAS asking because an acquaintance is in this situation and it was the first I'd heard of it and I wanted to know more about it. Take it down a few notches, geez. My friend has no idea whatsoever that I was emailing LDSP about this. I'm sure the author will or has handled it precisely in the way that you described. I asked for my OWN benefit.

And we weren't talking about ROFR so most of what you wrote doesn't apply. We were talking about ROFLR. Last refusal.

My original publishing contact had a ROFLR clause in it. When I wanted to get out of the contract, I sat down and talked withe publisher. He agreed to amend the contract to first right of refusal only.

My suggestion is to talk with the publisher and see what can be worked out. Most are fairly reasonable about it.

My bad. I was the first Anon. And I probably raised the ire of "cooler heads" anon. Instead of saying all that about attorney fees, I should have pointed out that working with your publisher after you sign something is a good, professional way to proceed.

I signed up without any clue about the ROFR. I had no idea. I didn't understand that they "had me" for every LDS-themed word I write or would write for my forseeable lifetime.

My publisher is wonderful. Would I go anywhere else? No. Am I happy? For sure. Do they treat me well? Certainly. Are they professional? 24/7. Do they go the extra mile? All the time. Do I enjoy working with them? Couldn't find a better group to work with.

So what's the problem?

There is something disconcerting about a contract that effectively limits your options to one on novels you haven't even begun to plot. You know. It has that wherefore-because-that-Satan-sought-to-destroy-the-agency-of-man feeling.

But other than that feeling of indenturedness, my publisher is the bomb!

The same goes for publishers. Some of these contracts are clearly a plan to ripoff their authors --- keep them in a serf state. And while I agree that most things can be solved with professionalism, that's no reason not to involve a lawyer. Not all lawyers are shysters anxious to make things work. This is a contract. You better make sure you know what's going on. Involving a legal professional is just sensible, nothing more. I'm instantly suspicious of anyone who would say otherwise. What are they trying to hide?

The LDS world of publishing is filled with authors who've been burned by draconian contracts. Whatever you do, don't sign a bad contract because you heard it won't get enforced anyway.

Another thing to think about is whether or not you get your rights back if the publisher lets your book go out of print. I know a fellow who runs a reprint company, but most LDS publishers won't surrender their rights, even though the books have been out of print for years --- sometimes decades --- and even though they have no plans for a rerelease.

anonymous @ 10:07--I think you misread the post. This had nothing to do with Right of First Refusal (ROFR) and everything to do with Right of First and LAST Refusal.

And it is a big deal. A huge deal. It makes my heart stop. I’m so grateful the publishing company I signed with didn’t put that in my contract, because I wouldn’t have known what to look for. They have the ROFR for my series. Of course! That’s only logical. But the thought of everything I write already belonging to somebody else…it just makes me sick inside.

To clarify my previous comment. Yes, I did mean ROFR. I believe that was the information I got, that the organizers of the BYU Pub fair will not allow any publisher who has right of first refusal in their contracts to attend. And they educate their writing students about its illegality. If I'm wrong on this, anyone, please correct me. (Again, I'm not talking about it when a series is involved.) Although I believe one particular publisher with ROFLR slipped through the cracks at the Pub Fair this year.

I'm obviously not a contract lawyer, but when I had ROFR/ROFLR explained to me by authors with it in their contract, they believed that once a publisher passed on one of their pieces (actually making all applicable refusals), and they were able to publish that work somewhere else, they would be released from that clause in the future. I suppose that depends on the exact wording of the clause.

A couple years ago, an author I know announced she was publishing with one of the big dogs in the LDS market and an anon commenter told her that their standard contract included ROFR (so maybe it's not just the small guys), BUT if an author asked (before signing?), they would remove that clause.

ROFR can be a little scary (but as one anon pointed out, at least you're guaranteed a look from one of the few publishers in the market), but I don't think I could let myself sign a contract with ROFLR.

It's my belief that you should have ROFR in your contract. If you don't have it, your publisher is not committed to you, regardless of what that means for your commitment to them. I disagree with ROFLR, quite a lot, but I wouldn't want to sign a contract that didn't indicate that my publisher didn't care what I did in the future. That would make me even more nervous.

The wonderful folks in the BYU publishing faculty who run the publishing fair--Diedre Poulson, for one--should strongly consider being more open to different publishing agreements and shouldn't vilify ROFR clauses as some horrible giant that will eat up authors' careers. This is a severely biased stand and does not take into account the many scores of authors in the LDS market who receive outstanding success because their publisher is invested in them. I would certainly like to hear of actual cases where authors were burned by ROLR--where a publisher actually denied their taking their project elsewhere if it was rejected after a ROFR. Seriously, does anyone have a concrete example of an author getting burned by ROLR?

We had an author whose work we wanted to accept, only when we requested that she rewrite and resubmit according to certain guidelines, she said she couldn't. Because then it would be a new ms. and her publisher which had turned it down originally would then have to look at it again. Huh? Whatever. So we had to take it as is, or not, so she would not be in violation of her contract. We chose not. Did this hurt her? She'll never know, will she? I hope she's really happy with her publisher who she's contracted to like a 1930's movie star owned by her studio.

I haven't read one comment here form anyone who seems to understand ROFR or ROFLR. maybe we ought to hire an attorney to explain it to us. Actually, most attorneys don't understand it. You have to go to a publishing attorney to find out what the terms mean in this industry. It certainly does not mean servitude.

At my publisher, as it has been explained by the owner and CEO, the ROFLR (prounounced: ROLFLOFRR as in obey us and roll flofer or die.) I must first submit my MS to them. They can, on whatever time schedule they deem appropriate, a day, a week, a month, a year, a decade, a century, (there is no time limit deliniated in the agreement) determine if they would like to publish my work. If, after their complete and exhaustive review of my ms, they reject it, I have three months to submit it to another publisher. Three months! Once that short three month window has passed and I have yet to sign a publishing agreement for the work, I must resubmit it to my publisher, have it rejected a second time, and then I'm allowed another three month period window to shop it around. Has anyone ever signed a publishing agreement on a novel from submission to signed agreement in less than three months? Anyone?

If that doesn't evoke the imagery of at least of few links off the servitude chain, can someone please throw out a better descriptor.

I don't think I'm alone on this, but anyone who insists on being anonymous loses credibility immediately. (I do use a pseudonym, but it's pretty dang transparent. You can figure out my full name in under a minute so long as you've graduated from dialup.) If you're so afraid for your career as a writer that you can't sign anything, then I think that's proof something is rotten in Denmark.

That said, I do know one popular LDS author (who has a penchant for suing people) that wrote a book for the national market but Covenant wouldn't let him take it there. So they published it and it had no chance to rack up national-sized sales. Not cool. He's endlessly limited, financially, to the LDS marketplace. And I don't think that's fair.

In my Church we have this word for halted progression. But I don't want to use it here.

But, for the record, yes, I think of laughing every single time.

(Until I remember what it stands for, then I weep and wail and gnash my teeth.)

Perhaps the anonymity is so people can speak freely while still preserving their contracts.

Ally Condie has published books in the LDS market, under a contract I assume. She now has a contract with a national publisher for 3 books, and her advance, as reported in PW, is 7 figures. At some point, her LDS publisher had to allow her to pursue other opportunities. I'm not sure it's accurate to say that LDS publishers own their authors into eternity, at least in Ally's case that isn't true.

If we don't like the contract terms of a particular publisher, LDS or national, we should submit elsewhere.

Regarding the situation mentioned by Th where an author wasn't allowed to sell national work nationally--apparently Covenant's contracts have changed; their ROFR doesn't apply to non-LDS-themed work now.

In reference to several comments posted here about the annual Publishers Fair at BYU: obviously there is a need for clarification. Since it would be highly inappropriate to name any specific individual or company here, all examples will be given generally.

First, the question of why some publishers were not invited to the fair proceeds from a misconception. Just because a publisher is not present does not mean they were not invited. Last year, for example, some opted not to come because the sudden downturn in the economy concerned them too much to expend travel expenses. In other cases, some editors retired and new ones had either not yet been named or had been named so recently that they needed to find their way around the offices before they ventured out elsewhere.

Second, on the question of ROFLR: It is true that at one time a specific publisher was not invited to the fair because they stated firmly that they refused to negotiate in any way with authors, on any issue including but not limited to ROFLR and it extended for life. One editor flatly said that if anyone tried to break the contract, they would take that author to court. They were unequivocal.

Many companies, local and national, often include restrictions in their contracts. Usually, however, they are specific and limited, such as this actual one for an author of a book of riddles aimed at middle school children, "the author agrees not to publish another book of riddles aimed at middle school children in the next two years." An ROFLR for a series is completely understandable and advantageous, for both author and publisher.

The rule on a publishing contract is like that for any other legal document: Get it read by someone with specific knowledge of the field before you sign it, preferably a good attorney. Any fees spent up front with be far less than the cost of fighting a bad contract after it is signed.

Another simple procedure is to look at the company as a whole. See what their marketing actually involves. If they ask authors to do their own marketing or pay for the printing costs or supply the advertising budget, go somewhere else.

The Science Fiction Writers of America maintain a websitesfwa.org/for-authors/writer-bewareon which authors can post warnings and their own experiences with specific publishers and literary agents. It's a fast way to identify scams -- at least, scams that have been out there long enough for other writers to have been burned.